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Quebec euthanasia law to face legal challenge for violations of Criminal Code, Charter

Kay Carter, 89, diagnosed with a painful and terminal condition known as spinal stenosis, went to a Switzerland clinic in 2010 to undergo an assisted suicide. On Wednesday the Supreme Court of Canada will hear arguments in the British Columbia case, launched by her daughter, Lee Carter. (HO / THE CANADIAN PRESS)

The landmark 1993 case of Sue Rodriguez, which delved into the right to assisted suicide for the terminally ill, was dismissed by the Supreme Court. The 42-year-old B.C. woman was suffering from amyotrophic lateral sclerosis (ALS) and sought to have the ban on assisted suicide ruled unconstitutional. (CHUCK STOODY / THE CANADIAN PRESS)

MONTREAL—Quebec and Ottawa are being taken to court in the first major legal challenge of a provincial law allowing terminally ill patients to request that their doctor hasten their deaths.

The court challenge argues that Quebec’s landmark law, which was adopted last summer and will go into effect in December 2015, is treading on federal jurisdiction by undercutting sections of the Criminal Code that outlaw assisted suicide and euthanasia. The law also violates section 7 of the Charter of Rights and Freedoms, which provides the right to life, liberty and security of the person, say court documents obtained by the Toronto Star.

The challenge is being headed by two Quebec-based groups long opposed to the provincial legislation, the Physicians’ Alliance Against Euthanasia, and Living with Dignity. Two other groups, the Euthanasia Prevention Coalition and the Christian Legal Fellowship, have also joined the suit as interveners.

The documents present the additional argument that individuals suffer “psychological instability” upon learning that they will soon die and that this effectively prevents them from giving clear consent to end-of-life procedures as required under the province’s guidelines.

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“It’s a huge shock to the system to receive a terminal diagnosis and it’s actually quite well known that people go into a depression,” said Nicolas Steenhout, director general of Living with Dignity. “At that point it’s basically not really possible to make clear and informed consent.”

The law makes Quebec the first jurisdiction in North America to allow a medically assisted death. The provisions state that terminally ill patients with an irreversible medical condition that causes them intolerable physical or psychological pain can ask their doctor to administer a lethal dose of drugs to end their suffering.

The federal Conservative government also expressed its opposition to the Quebec law, but was named as a defendant in the lawsuit because it has responsibility for the Criminal Code in Canada, said Steenhout.

A spokesperson for Quebec Justice Minister Stéphanie Vallée declined to comment on the court challenge. Neither Quebec nor Ottawa has filed a statement of defence in the case.

The details of the Quebec court challenge come as the Supreme Court of Canada prepares to hear arguments on Wednesday in the British Columbia case launched by Lee Carter, the daughter of 89-year-old Kay, who travelled to a clinic in Switzerland in 2010 to undergo an assisted suicide. Kay Carter had been diagnosed with a painful and terminal condition known as spinal stenosis.

The Carter case is seeking to overturn the Supreme Court’s 21-year-old decision upholding the ban on euthanasia and assisted suicide in Canada.

The landmark 1993 case of Sue Rodriguez, a 42-year-old B.C. woman who was suffering from amyotrophic lateral sclerosis (ALS) and sought to have the ban on assisted suicide ruled unconstitutional, was dismissed by the Supreme Court. The court’s ruling cited prohibitions on assisted suicide as “the norm among Western democracies.”

“No consensus can be found in favour of the decriminalization of assisted suicide. To the extent that there is a consensus, it is that human life must be respected,” the majority ruling noted.

It is a much different landscape today. Luxembourg, Belgium and the Netherlands have all introduced laws allowing doctors to administer lethal drugs to dying patients to ask for it. In addition, several American states as well as Switzerland, Germany and Japan, among others have legalized assisted suicide so that terminally ill patients can receive life-ending drugs.

Here in Canada, a recent Ipsos Reid survey conducted for Dying with Dignity, a group that lobbies for assisted suicide and physician-assisted death laws, found that 84 per cent of Canadians believed doctors should be able to help suffering, terminally ill patients hasten their deaths.

Quebec, which began studying and debating the issue in 2010, decided that the vast majority of its population was in favour of allowing doctors to bring about a quicker end to the lives of dying patients. The law passed in a June vote with 94 members of Quebec’s legislature in favour and 22 opposed.

The Quebec government believes that physicians who are asked and agree to end their patients’ lives should not be subjected to criminal prosecution because they are carrying out a medical procedure intended to limit suffering. Canadian provinces have sole jurisdiction for health care.

The law also includes additional funding and guidelines for palliative care services in the province and formal rules for palliative sedation, where a dying patient is rendered unconscious to alleviate their suffering until a natural death occurs.

Although the countdown is on until Quebec doctors begin providing medically assisted deaths, the court challenge will likely have to wait until next summer to proceed, once the Supreme Court rules on the Carter case that will be heard on Wednesday.

Steenhout said counsel in the Carter case is asking the court to rule on some of the same issues being raised in the challenge of the Quebec law, most notably the sections of the Criminal Code dealing with euthanasia and assisted suicide.

The plaintiffs in the Quebec case are pushing for an initial ruling on their lawsuit before the provincial law comes into force in December 2015, but may also seek an injunction to suspend the law if there are court delays.

“There is a public interest as well as an interest of the parties in having an initial judgment before the (law) comes into force, notably to avoid the commission of culpable homicide by doctors who, in error, believe that the law allows them to legally euthanize their patients when in fact they are committing a criminal infraction that is among the most serious in Canadian law.”

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